Citation Nr: 9916893
Decision Date: 06/18/99 Archive Date: 06/29/99
DOCKET NO. 97-31 358 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for service connection for a psychiatric disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
T. Reichelderfer
INTRODUCTION
The veteran served on active duty from September 1969 to
February 1971.
This appeal arises from a rating decision of May 1997 from
the St. Petersburg, Florida, Regional Office (RO).
FINDINGS OF FACT
1. An August 1976 rating decision denied service connection
for chronic undifferentiated schizophrenia.
2. Evidence received subsequent to the August 1976 decision
is not new and material.
CONCLUSION OF LAW
The August 1976 rating decision is final. Evidence received
subsequent to that decision is not new and material, and does
not serve to reopen the claim for service connection for a
psychiatric disorder. 38 U.S.C.A. § 5108, 7105 (West 1991);
38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In a rating decision in August 1976, service connection for
chronic undifferentiated schizophrenia was denied. The
veteran was advised of this decision in a letter to him, also
dated in August 1976.
Prior decisions of the RO are final, but they may be reopened
upon the receipt of evidence which is both new and material.
38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104,
20.302, 20.1103 (1998). New and material evidence means
evidence not previously submitted to agency decision makers
which bears directly and substantially upon the specific
matter under consideration, which is neither cumulative nor
redundant, and which by itself or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a) (1998).
The evidence that is considered to determine whether new and
material evidence has been received is the evidence received
since the last final disallowance of the veteran's claim on
any basis. Evans v. Brown, 9 Vet.App. 273 (1996). Since the
RO's August 1976 decision is a final determination and was
the last decision to address the issue of service connection
for a psychiatric disability, the evidence that is considered
to determine whether new and material evidence has been
received is the evidence that has been received following
that decision.
Private hospital and clinical records, dated in February and
March 1974, were received. However, with the exception of
two pages of progress records, these same medical records
were contained in the claims file and considered for the
prior decision. The two pages of progress records are
clinical notes made during his February to March 1974
hospitalization. However, they provide no additional
relevant information and are thus cumulative of the other
private hospital records that were contained in the claims
file and considered for the prior decision. Accordingly, the
private hospital and clinical records are not new.
The veteran's service personnel records (DA Form 20) were
received. These records are new since they were not
previously of record. However, they do not provide any
evidence that the veteran incurred a psychiatric disorder in
service. Accordingly, the service personnel records are not
material.
VA hospital summaries for hospitalizations in May 1976,
November 1987, April 1990, June 1994, April to May 1996, and
February to March 1997 were received. Additionally, November
1987 to April 1996 VA clinical records and November 1987 to
March 1997 VA records of appointments and dispositions were
received. These VA records are related primarily to
psychiatric treatment and also include general medical
treatment. The records are new since they were not
previously of record. However, they do not provide any
evidence that the veteran's psychiatric disorder began during
service or that it is related to service. As such, the
records are not material to the issue service connection.
The veteran submitted a March 1997 statement from a VA social
worker.
The social worker stated "I get the feeling that [the
veteran] was discharged after Army supervisor's discovered he
had developed a behavioral problem." This statement is new
since it was not previously of record. However, the
statement does not provide competent evidence that the
veteran's current psychiatric disease began in service since
it only speculates that the veteran had behavior problems in
service. Accordingly, the statement is not material.
The veteran presented testimony at a hearing at the RO in
September 1997. He indicated that his psychiatric problems
began during service, he was evaluated by a psychiatrist, and
was confined after a special court martial had dismissed
charges against him. He testified that he had psychiatric
problems immediately after service which became worse. He
indicated that he was hospitalized in 1973. The veteran's
testimony is new in the sense that it was not previously of
record. However, as a lay person, the veteran is not
competent to render an opinion as to medical diagnoses or
causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Therefore, his testimony that his psychiatric disorder began
during service is not probative evidence and thus is not
material.
The evidence that has been received since the last
disallowance of the veteran's claim is either not new or not
material to the issue of service connection for a psychiatric
disability. Either alone or in conjunction with the evidence
previously of record, the new evidence is not so significant
that it must be considered to fairly decide the merits of the
claim since it does not provide probative or competent
evidence that a psychiatric disorder was incurred in service
or was present within one year of discharge from service.
Therefore, the evidence is not new and material. 38 C.F.R.
§ 3.156(a) (1998).
New and material evidence has not been received and the claim
for service connection for a psychiatric disorder is not
reopened. 38 U.S.C.A. § 5108, 7105 (West 1991); 38 C.F.R.
§§ 3.104, 3.156(a), 20.302, 20.1103 (1998).
ORDER
New and material evidence has not been received, and the
claim for service connection for a psychiatric disorder is
not reopened.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals